Legalpedia Citation: (2025-07) Legalpedia 19546 (CA)

In the Court of Appeal

Holden at Ibadan

Thu Jul 3, 2025

Suit Number: CA/IB/182/2012

CORAM

Biobele Abraham Georgewill Justice of the Court of Appeal

Kenneth Ikechukwu Amadi Justice of the Court of Appeal

Fadawu Umaru Justice of the Court of Appeal

PARTIES

1. MADAM DORCAS ODU
2. BAALE FRANUS EBELAMU ODU
3. CHIEF S. AKANNI BURAIMOH
4. SEGUN ODU
5. IDOWU ODU 6. ALHAJI AMUSA ADENLE

(For themselves and on behalf of IDO-AROBE Chieftaincy Family)

APPELLANTS

1. CHIEF RASHEED BAMTEFA
2. CHIEF SIKIRU ILO
3. ELDER RASHEED BABATUNDE
4. MR. AFOLABI FAGBOHUN 5. MR. AFOLABI IMOGA
5. MR. RASAK AJOSE

(For themselves and on behalf of IGA-NLA Chieftaincy Family)

7. CHIEF MOSHOOD ADISA DADA
8. CHIEF WAHAB OLABODE ITU
9. ALFA RASHEED AKOMOLAFE
10. CHIEF (MRS) EBO AGBOMAWI 11. MR. TAJUDEEN AKOMOLAFE

(For themselves and on behalf of IGA-AGO Chieftaincy Family)

AND

12. BABA OYINBO
13. T.A OLUYOMI
14. D. JAIYEOLA 15. JOHN ABATAN
15. MR. GEORGE IDOWU
16. BISIRIYU EGUNJOBI
17. OSE LATIFU
18. CHIEF ADISA KUYEEBI
19. MR. BURAIMOH OKE
20. MR. AMORE AKAPO 22. MR. MUYIBI ARIYO
21. MR. JULIUS ADIO AJOSE
22. COMMISSIONER FOR CHIEFTANCY AND LOCAL GOVERNMENT AFFAIRS
23. ADO – ODO OTA LOCAL GOVERNMENT COUNCIL

RESPONDENTS

AREA(S) OF LAW

AREAS OF LAW: APPEAL, CIVIL PROCEDURE, COMPETENCE OF ORIGINATING PROCESS, CONSTITUTIONAL LAW, JURISDICTION, LEGAL PRACTITIONERS ACT, PRACTICE AND PROCEDURE, PROFESSIONAL CONDUCT, SIGNING OF COURT PROCESSES, SUBSTANTIAL JUSTICE, TECHNICAL JUSTICE

SUMMARY OF FACTS

The 1st-11th Respondents and the Appellants commenced an action as 1st, 2nd and 3rd Sets of Claimants by Writ of Summons filed on 16/2/2006 against the 12th-22nd Respondents claiming several declaratory and injunctive reliefs in respect of lands situate at Ketu Adie Owe, Paramole, Ayigbaboro Village and Ishaga Idiroko Village. The Writ of Summons was endorsed by Marcus Babaoye and Co., a law firm, without the signature of either the Claimants or their named counsel. Subsequently, the Writ of Summons was amended but still without the signature of either the Claimants or any named counsel.

However, the Writ of Summons was signed by the Registrar of the lower Court and accompanied by an endorsement dated 16th February, 2006 issued by Marcus O. Babaoye and Co. The Statement of Claim dated 16/2/2006 was signed by one Nweke Andy Ojo, a legal practitioner. The parties filed and exchanged pleadings, proceeded to trial, led evidence, and filed final written addresses. On 28/11/2011, the lower Court delivered judgment dismissing the claims of the Appellants and 1st-11th Respondents for lacking merit.

The Appellants appealed on the sole ground challenging the competence of the suit, arguing that the Writ of Summons was not properly signed by a legal practitioner as required by law. During the appeal hearing, the 1st-11th Respondents withdrew their opposition to the appeal, while the 12th-22nd Respondents opposed it, arguing that the Appellants were estopped from raising the issue and that the applicable rules at the time did not require counsel’s signature on the Writ.

HELD

1. The appeal was allowed and had merit.
2. The Court held that the Writ of Summons filed on 16/2/2006 was incompetent as it was neither signed by the Claimants nor any named counsel as required by law, notwithstanding the endorsement by Marcus Babaoye and Co., a law firm.
3. The Court held that a law firm is not a legal practitioner whose name is on the Roll of Legal Practitioners and cannot sign court processes.
4. The Court held that the signature of the Registrar cannot substitute for the signature of either the Claimants or their named counsel.
5. The Court held that an incompetent originating process cannot be amended to render it competent, and once incompetent, it remains so for all purposes.
6. The Court held that competence is the soul of adjudication and cannot be regarded as mere technicality but as a substantial issue of law.
7. The Court held that the doctrine of estoppel cannot apply in the face of an incompetent suit.
8. The judgment of the High Court of Ogun State delivered on 28/11/2011 was set aside, and the suit was struck out for being incompetent.
9. No order as to costs was made.

ISSUES

The sole issue for determination distilled by both parties: “Whether or not the lower Court had jurisdiction to entertain and determine this suit when the suit was not properly commenced as required by law?”

RATIONES DECIDENDI

SIGNING OF COURT PROCESSES – LAW FIRMS NOT BEING LEGAL PRACTITIONERS

Now, at pp. 1 – 4 and 84 – 88 of the Records of Appeal, I can see the name of Marcus Babaoye and Co., a Law Firm as Legal Practitioners for the 1st – 11th Respondents and Appellants as Claimants before the lower Court, but regrettably, I cannot see the signature of any named counsel appended thereto or the signature of any of the Claimants. Thus, there is only the name of Marcus Babaoye and Co., a Law Firm of counsel to the 1st – 11th Respondents and Appellants as Claimants before the lower Court but no signature of any identifiable legal practitioner on the Writ of Summons, and to start with, a Law Firm, such as Marcus Babaoye and Co., is in law not a legal practitioner, whose name is on the Roll of Legal Practitioners at the Supreme Court of Nigeria and enrolled to practice law as a legal practitioner. – Per BIOBELE ABRAHAM GEORGEWILL, J.C.A.

REGISTRAR’S SIGNATURE – INABILITY TO SUBSTITUTE FOR COUNSEL OR PARTY’S SIGNATURE

Yes, it is true, and I can see the signature of the Registrar of the lower Court on the Writ of Summons but I am of the firm view, and I so hold, without much ado, that the signature of the Registrar of the lower Court is not, and cannot be, a substitute for the signature of either the 1st – 11th Respondents and the Appellants, as Claimants, or any named counsel for the Claimants before the lower Court. – Per BIOBELE ABRAHAM GEORGEWILL, J.C.A.

SIGNING OF ORIGINATING PROCESS – REQUIREMENT AS SINE QUA NON FOR VALIDITY

In law, the signing of an originating process, such as the 1st – 11th Respondents and Appellants’ Writ of Summons is a sine qua non for its validity and such a process must be signed either by the party or by his counsel in the name clearly and on the Roll of Legal Practitioners in the Supreme Court of Nigeria by virtue of Sections 2 and 24 of the Legal Practitioners Act 1976, failing which it would render such an originating process irredeemably and incurably defective and therefore, incompetent. – Per BIOBELE ABRAHAM GEORGEWILL, J.C.A.

PROFESSIONAL CONDUCT RULES – REQUIREMENTS FOR SIGNING LEGAL DOCUMENTS

My lords, by Rules 10(1),(2)and(3) of the Rules of Professional Conduct of the Legal Profession, 2007, it is provided as follows: 10(1): ‘A Lawyer acting in this capacity as a Legal practitioner, legal officer or adviser of any government department or ministry or any corporation shall not sign or file a legal document unless there is affixed in any such document a seal and stamp approved by the Nigerian Bar Association.: 10(2): For the purpose of this rule ‘legal documents’ shall include pleadings, affidavits, depositions, applications, instruments, agreements, deeds, letters, memoranda, reports, legal opinions or any similar documents’ 10 (3): If without complying with the requirements of this rule, a lawyer signs or files any legal documents as defined in sub-rule (2) of this rule and in any of the capacities mentioned in sub-rule (1), the document so signed shall be deemed not to have been properly signed or filed’. – Per BIOBELE ABRAHAM GEORGEWILL, J.C.A.

VERIFICATION OF SIGNATURES – REQUIREMENT FOR IDENTIFIABLE LEGAL PRACTITIONER

Nowadays, so strict is the ‘Rule in Okafor V. Nweke (2007) 10 NWLR (Pt. 1043) 521’ that it is no longer only when a Court process is signed in the name of a Law Firm that it is incompetent, it is also incompetent when it is signed by no verifiable person. In GTB Plc V. Innoson Nigeria Limited (2017) 6 NWLR (Pt. 1594) 186, the Apex Court, per Eko JSC, had held inter alia thus: ‘A Court process that purports to be settled by a legal practitioner must, as a requirement of statute, have not only the signature of the legal practitioner but also his name clearly shown and indicating that the signature is his…..The process must have the signature or mark of the legal practitioner either against his name, or over and above his name. The written addresses filed on 6th April, 2016 and 21st June, 2016 are clearly incompetent. The signature on each of them cannot be verified or traced to any registered legal practitioner. They are accordingly struck out’ – Per BIOBELE ABRAHAM GEORGEWILL, J.C.A.

LEGAL DOCUMENTS – EFFECT OF IMPROPER SIGNING ON VALIDITY

The Apex Court has spoken and I have heard and must perforce bow to it that any Court process for that matter, and more particularly an originating process, not verifiable to have been signed by either the party himself or his legal practitioner is incompetent and therefore liable to be struck out. See Solumade V. Kuti (2022) 1 NWLR (Pt. 1810) 31 @ p. 70, where the Supreme Court had pronounced with finality inter alia thus: ‘A legal document not signed by a Legal Practitioner in accordance with the law is nothing but a worthless piece of document or process and cannot activate rights and obligations of the parties or confer jurisdiction on the Court before which it appertains’.– Per BIOBELE ABRAHAM GEORGEWILL, J.C.A.

COMPETENCE AS JURISDICTIONAL ISSUE – THRESHOLD NATURE OF COMPETENCE

My lords, the issue of failure to sign an originating process as required by law raises the issue of competence, which is a threshold issue of jurisdiction. It does not give the Court any joy seeing the parties and itself belabouring in vain to determine on the merit matters which are incurably defective and hopelessly incompetent. – Per BIOBELE ABRAHAM GEORGEWILL, J.C.A.

REQUIREMENTS FOR SIGNING COURT PROCESSES – SUPREME COURT PRONOUNCEMENT

In SLB Consortium Ltd V. NNPC (2011) 9 NWLR (Pt. 1252) 317 @ pp. 331- 332, the Apex Court per Onnoghen JSC, (but later CJN), had with finality restated the law inter alia thus: ‘A process prepared and filed in a Court of law by a legal practitioner must be signed by the legal practitioner and that it is sufficient signature if the legal practitioner simply writes his own name over and above the name of his/or firm in which he carries out his practice. It has been argued that noncompliance with the provision of Order 26 Rule 4(3) supra is mere irregularity…..as the same involves the procedural jurisdiction of the Court. I hold the view that the submission is misconceived on the authority of Madukolu V. Nkemdilim (supra)…’ – Per BIOBELE ABRAHAM GEORGEWILL, J.C.A.

SIGNING OF COURT PROCESSES – DETAILED REQUIREMENTS FOR PROPER SIGNING

On his part, his lordship, Rhodes – Vivour JSC.@ pp. 337 – 338, had with precision put this issue succinctly inter alia thus: ‘All processes filed in Court are to be signed as follows: First, the signature of counsel, which may be any contraption. Secondly, the name of counsel written; Thirdly, who the counsel represents. Fourthly, name and address of legal firm…Once it cannot be said who signed a process it is incurably bad, and rules of Court that seem to provide a remedy are of no use as a rule cannot override the law (i.e. the Legal Practitioner Act.)’ – Per BIOBELE ABRAHAM GEORGEWILL, J.C.A.

APPLICABLE RULES OF COURT – EXTANT RULES AT TIME OF HEARING

In law, when it comes to Rules of Court, it is the extant Rule of Court that prevails and not the previous Rules of Court. See Kuma V. Gov. Of Benue State & Ors (2023) LPELR-59610(CA) where this Court had reiterated inter alia thus: ‘I think I only need to point it out at once that in law when it comes to applicable Rules of Court to govern procedural matters it is the extant Rules of Court at the time of hearing the matter that is to be reckoned with and not the Rules of Court at the time the process was filed. This is unlike substantive law in which the applicable law is the law in existence at the time the cause of action arose.’ – Per BIOBELE ABRAHAM GEORGEWILL, J.C.A.

AMENDMENT OF INCOMPETENT ORIGINATING PROCESS – IMPOSSIBILITY OF CURING INCOMPETENCE

It is also the law that an incompetent originating process cannot be amended in order to render it competent. In other words, once an originating process, such as a Writ of Summons, is incompetent, not merely irregular, it remains incompetent for all purposes and remains so till eternity and cannot be cured by any amendment. Thus, it is only where an originating process is merely irregular that it can or may be amendment to render it valid, but not an incompetent originating process.– Per BIOBELE ABRAHAM GEORGEWILL, J.C.A.

SUBSTANTIAL JUSTICE VS TECHNICAL JUSTICE – COMPETENCE AS SUBSTANTIAL ISSUE

My lords, while in today’s jurisprudence of ‘substantial justice’ the issue of ‘mere technicality’ no longer holds sway, yet it is truism that competence is the soul of adjudication. It is in this sense the issue of competence can no longer in law truly be regarded as ‘mere technicality’ but rather be seen as substantial issue of law. In other words, while eschewing technicality for its sake, a Court can only exercise jurisdiction where all conditions precedent to the exercise of its powers have been fulfilled. – Per BIOBELE ABRAHAM GEORGEWILL, J.C.A.

JURISDICTION AS LIFE BLOOD – EFFECT OF LACK OF JURISDICTION

In law, in the absence of jurisdiction there can be no competence in the 1st – 11th Respondents and Appellants’ Suit to be heard and determined on the merit, since jurisdiction is the life blood of every cause or action. Thus, where the requisite jurisdiction is found to be lacking that is indeed the end of the matter. In AG. Lagos State V. Dosunmu (1989) 3 NWLR (Pt. 111) 552, the Supreme Court per Kayode Eso JSC, (God bless his soul) had put it so poetically thus: ‘Without jurisdiction, the laborers that is the litigant and counsel on the one hand and the Court on the hand labour in vain’– Per BIOBELE ABRAHAM GEORGEWILL, J.C.A.

CASES CITED

STATUTES REFERRED TO

1. Legal Practitioners Act 1975
2. Legal Practitioners Act 1976
3. Section 2(1) of the Legal Practitioners Act 1975
4. Sections 2 and 24 of the Legal Practitioners Act 1976
5. Rules of Professional Conduct of the Legal Profession, 2007
6. Rules 10(1), (2) and (3) of the Rules of Professional Conduct of the Legal Profession, 2007
7. Ogun State High Court (Civil Procedure) Rules Edict 1987
8. Order 5 Rules 10(a) and 12(1) of the Ogun State High Court (Civil Procedure) Rules Edict, 1987

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